C-410/92

JOHNSON

JUDGMENT OF THE COURT 6 December 1994 *

In Case C-410/92,

R E F E R E N C E to the Court under Article 177 of the E E C Treaty by the Court of Appeal for a preliminary ruling in the proceedings pending before that court between

Elsie Rita Johnson

and

JUDGMENT OF 6. 12. 1994 — CASE C-410/92

Advocate General: C. Gulmann, Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

— Mrs Johnson, by R. Drabble, Barrister, and P. Wood, Solicitor,

— Ireland, by M. A. Buckley, Chief State Solicitor, acting as Agent,

— the United Kingdom, by L. Hudson, of the Treasury Solicitor's Department, acting as Agent, and C. Vajda, Barrister,

gives the following

Judgment

1 By order of 30 October 1992, received at the Court on 10 December 1992, the Court of Appeal referred for a preliminary ruling under Article 177 of the E E C Treaty questions on the interpretation of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p . 24).

2 Those questions arose in a dispute between Mrs Johnson and the Chief Adjudica- tion Officer concerning payment of severe disablement allowance.

3 The material Community provisions are those of Directive 79/7.

4 Article 2 provides that the directive applies 'to the working population — includ- ing self-employed persons, workers and self-employed persons whose activity is interrupted by illness, accident or involuntary unemployment and persons seeking employment — and to retired or invalided workers and self-employed persons.'

— the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitle- ment to benefits.'

6 Under Article 8, the period within which Member States were required to trans- pose the directive expired six years after its notification, hence on 22 December 1984.

7 Mrs Johnson, the appellant in the main proceedings, gave up work in or about 1970 in order to look after her daughter, who was then six years old. She sought to resume employment in 1980 but was unable to do so because of a back complaint. For that reason she was granted Non-Contributory Invalidity Benefit ('NCIB') in 1981, when she was living alone.

s In 1982 she began cohabiting with a male friend. Payment of N C I B then ceased because at that period a woman cohabiting with a man was required, in order to qualify for N C I B , to prove not only that she was unfit for work but also that she

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JOHNSON

(i) in the prescribed manner; and

(ii) subject to subsection (2) below, within the prescribed time;

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JUDGMENT OF 6. 12. 1994 — CASE C-410/92

i2 In a case such as this, the effect of that provision is that a person who has not claimed payment of N C I B before the abolition of that benefit may not claim auto- matic entitlement to SDA (see Case C-31/90 Johnson v Chief Adjudication Officer [1991] ECR1-3723, paragraph 29).

» The Social Security Commissioners, before whom the case came on appeal, referred questions to the Court of Justice by decision of 25 January 1990 asking in particular whether such a rule was compatible with Directive 79/7.

(c) to any other benefit (except disablement benefit or reduced earnings allowance or industrial death benefit) in respect of any period more than 12 months before the date on which the claim is made.'

i7 Mrs Johnson appealed to the Court of Appeal, where argument centred on whether the judgment of the Court of Justice in Case C-208/90 Emmott v Minister for Social Welfare and Attorney General [1991] ECR 1-4269 constituted a prece- dent for the present case and whether it entitled Mrs Johnson to receive benefits from 22 December 1984, when the period for transposing Directive 79/7 expired.

is In Emmott the Court ruled that Community law precludes the competent author- ities of a Member State from relying, in proceedings brought against them by an individual before the national courts in order to protect rights directly conferred upon him by Article 4(1) of Directive 79/7, on national procedural rules relating t o time-limits for bringing proceedings so long as that Member State has not properly transposed that directive into its domestic legal system.

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JUDGMENT OF 6. 12. 1994 — CASE C-410/92

i9 The Court of Appeal, in doubt as to the proper scope of that judgment, decided to stay proceedings and refer the following questions to the Court for a preliminary ruling:

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and the directive in a national tribunal pursuant to which that individual is awarded the benefit for the future and for 12 months prior to the bring- ing of the claim in accordance with the relevant national rules on pay- ments for the period prior to the making of the claim,

must that national tribunal disapply those national rules on arrears of payment from the date that the deadline for implementation of the direc- tive has expired, that is, 23 December 1984?'

20 By those questions, which should be considered together, the national court asks, in essence, whether it is compatible with Community law to apply, to a claim based on the direct effect of Directive 79/7, a rule of national law which limits the period prior to the bringing of the claim in respect of which arrears of benefit are payable, even where that directive has not been properly transposed within the prescribed period in the Member State concerned.

2i The right conferred on women by the direct effect of Article 4(1) of Directive 79/7 to claim benefits for incapacity for work under the same conditions as men must be exercised under the conditions determined by national law, provided that, as the Court has consistently held, those conditions are no less favourable than those relating to similar domestic actions and that they are not framed so as to ren- der virtually impossible the exercise of rights conferred by Community law (see Case C-338/91 Steenhorst-Neerings v Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen [1993] ECR 1-5475, paragraph 15, and Emmott, paragraph 16).

26 However, it is clear from the judgment in Steenhorst-Neerings that the solution adopted in Emmott was justified by the particular circumstances of that case, in which a time-bar had the result of depriving the applicant of any opportunity whatever to rely on her right to equal treatment under the directive.

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27 The Court pointed out in Steenhorst-Neeńngs (paragraph 20) that in Emmott the applicant in the main proceedings had relied on the judgment of the Court in Case 286/85 McDermott and Cotter v Minister for Social Welfare and Attorney General [1987] E C R 1453 in order to claim entitlement by virtue of Article 4(1) of Direc­ tive 79/7, with effect from 23 December 1984, to invalidity benefits under the same conditions as those applicable to men in the same situation. The administrative authorities had then declined to adjudicate on her claim since Directive 79/7 was the subject of proceedings pending before a national court. Finally, even though Directive 79/7 had still not been correctly transposed into national law, it was claimed that the proceedings she had brought to obtain a ruling that her claim should have been accepted were out of time.

28 In contrast, the rule at issue in Steenhorst-Neeńngs did not affect the right of indi­ viduals to rely on Directive 79/7 in proceedings before the national courts against a defaulting Member State but merely limited to one year the retroactive effect of claims for benefits for incapacity for work.

29 The Court concluded (paragraph 24) that Community law did not preclude the application of a national rule of law whereby benefits for incapacity for work were payable not earlier than one year before the date of claim, in the case where an individual sought to rely on rights conferred directly by Article 4(1) of Directive 79/7 with effect from 23 December 1984 and where on the date the claim for ben­ efit was made the Member State concerned had not yet properly transposed that provision into national law.

34 Those arguments are not cogent. Admittedly, the individual position of Mrs Johnson and the benefit which she seeks can be distinguished in certain respects from the situation and the benefit at issue in Steenhorst-Neerings.

35 The fact remains, however, that the rule at issue in this case is identical to that under consideration in Steenhorst-Neerings and that the application of those rules does not make it impossible to exercise rights based on the directive.

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36 Accordingly, the answer to the national court's questions must be that Community law does not preclude the application, to a claim based on the direct effect of Directive 79/7, of a rule of national law which merely limits the period prior to the bringing of the claim in respect of which arrears of benefit are payable, even where that directive has not been properly transposed within the prescribed period in the Member State concerned.

Costs

JUDGMENT OF 6. 12. 1994 — CASE C-410/92

its the period prior to the bringing of the claim in respect of which arrears of benefit are payable, even where that directive has not been properly transposed within the prescribed period in the Member State concerned.

Rodriguez Iglesias Joliét Schockweiler

Kapteyn Mancini Kakouris Moitinho de Almeida

Murray Edward

Delivered in open court in Luxembourg on 6 December 1994.